A change in the law caps the notice period for employees who resign at a maximum of 13 weeks in any case. This applies even if the employment contract already started before 1 January 2014.
A second change in the law confirms that if the employer proceeds to terminate an employment contract that commenced before 1 January 2014, a valid notice clause existing on 31 December 2013 must be applied for the first part of the notice period.
Both legislative amendments have come into force on 28 October 2023.
Ceiling for notice period in case of resignation
From 28 October 2023, the notice period of employees who resign will be calculated solely based on the notice periods introduced by the Law on the Unitary Statute.
This therefore applies even if the employment contract started before 1 January 2014. Although the employee’s full seniority with the employer must be taken into account, the “double photo rule” will – from 28 October 2023 – no longer be applied when the employee resigns.
This means that − from 28 October 2023 − the notice period for employees who resign, will be capped at 13 weeks in any case, as this is the maximum statutory notice period. You can easily calculate the term with our tool at www.opzegging.be
Termination by the employer: what about a notice clause?
Another change in the law, also coming into force on 28 October 2023, relates to the situation where the employer terminates an employment contract that started before 1 January 2014. When the employer terminates the employment contract, the so-called “double photo rule” must still be applied.
However, the law now expressly provides that, if a valid notice clause existed on 31 December 2013, this clause must be applied for the calculation of the first part of the notice period (“step 1”). In such a case, the legal rule that for white-collar employees whose annual salary exceeded EUR 32,254 on 31 December 2013, the notice period of “step 1” must be set at one month per started year of seniority, with a minimum of three months, can therefore not be applied.
The law thus enshrines the case-law of the Constitutional Court in this regard. However, it is notable that the legislator does not distinguish between termination clauses that are favourable to the employee and termination clauses that are favourable to the employer. To apply the termination clause for the calculation of “step 1”, it suffices that the clause was valid and still existed on 31 December 2013.
Points of attention
- From 28 October 2023, the notice period for all employees who resign will be a maximum of 13 weeks. The “double photo rule” no longer applies to employees with an employment contract that started before 1 January 2014.
- When you proceed to terminate an employment contract that commenced before 1 January 2014, it is best to check whether a valid termination clause was concluded with the employee before 1 January 2014. If so, this clause will have to be respected for the calculation of the first part of the notice period (“step 1”).
